Employer says I can't get a second job

Factual Questions
1

I recognize that that most of you are not lawyers and those that are can’t give advice, but I respect the opinions expressed here and could use a little advice

I work for a small (8 people) biotech company as a scientist. Most of my duties involve doing research, running a very small lab, writing grants, etc. I have been offered and have accepted a part time evening teaching position at a local college.

It states in the employee handbook that our core hours are 8:30-10:30 and 1:30-4:30 with the remainder 8 hour day being made up sometime during the day. I usually fill this out during 10:30-1:30. Typically, I stay until after 5, 5:30 or even 6. (last year I averaged ~47 hours a week.)

The hours of the class start at 5:30 2 days a week. (I have to leave my job at 4:30 to get there on time)

My employer is giving me a bit of static about teaching. I told them about the position as soon as I could, and while I have accepted the position I still don’t have “permission” from my employer.

First they handed me a paper stating the “consulting policies” which state I can’t work more than 15 hours a month as a consultant. ( I don’t know the definition of “consultant” but I have my doubts teaching part time is one). Then they asked me the number of hours, how much I’m getting paid and the benefits. I refused at this time to tell them the pay and told them an estimate of the hours and no benefits. It also seems important to them that I am NOT employed by the school but am an independant contractor (This makes some difference to them…I don’t know what). I haven’t told them that I am employed and not an independant contractor.

Finally their position seems to be that since I am an exempt employee, they do have the right to prevent me from taking this job. I personally have my doubts about being exempt…Just because the president of the company says I am doesn’t make it so.
They have not prevented me (yet) from taking the job, but they haven’t given me permission either. I started last week.

I live in Wisconsin

So now the general questions:

Are there resources I can use to find out if they can truly prevent me from taking the job.

Do “exempt” employees have so little rights that employers can demand they work for any number of hours, including those not listed in the handbook?

Am I really “exempt?”

Do I have to tell them how much I’m to be paid and if there are benefits?
And finally (for now) Are they being slimeballs? or am I being too sensitive? (Maybe that’s a IMHO)
Thanks for your answers in advance.

2

IANAL. The best place to start is with your state’s labor board. Unless you’ve signed some sort of legally binding contract, your employer can’t tell you what to do with your spare time.

3

If you are a contractor, or 1099 person, then you are likely by default a consultant. If they don’t get that, their consultant argument is out the window.

Things that I believe make you non-exempt in OH,
If you punch a clock
If you’re paid overtime (questionable)
If you’re docked pay for working under 40

This is of course IMHO, I anal. (Oh wait, that’ IANAL)

4

Most states are “hire at will” states, meaning that, absent a contract, either personal or negotiated through a union, your employer may fire you for wearing your hair wrong.

From that perspective, if you do not have a contract with your bio-tech company, they can generally set whatever terms on your employment that they want–including barring you from other employment, even if it is not competitive.

For the complete story for Wisconsin, you’ll probably have to talk to a real live lawyer.

The insurance questions may be based on the different rules that insurers have regarding double coverage. I can’t say that that is their actual worry (they may just be jerks), but it is a consideration. You might ask them why they need to know.

“Exempt” is simply a status regarding whether they are obligated to pay you overtime beyond 40 hours per week. If you have been working 47 hours a week and they have been paying you for 40, you havce been treated as exempt. Whether you should be considered exempt is a matter for an actual lawyer to determine. (Generally, if you are a supervisor with review over other employees, they can call you exempt pretty easily. There are a number of other categories of employment that are also exempt, but I cannot enumerate the Wisconsin code.)

For an 8 employee shop, it seems that you do not have much rapport with management. I can’t offer any help there, but you should probably be aware that there are fewer rules constraining small shops than large ones, so irritating the boss is not generally a good career move.

5

It’s not uncommon for an employer to disallow moonlighting in the field in which the employee works. They’ve got a vested interest in what you’re doing, and don’t want the fruits of their investment to be used to benefit a possible competitor. Likewise, they’re probably concerned that you’re going to divulge proprietary information to your students.

As anecdotal evidence, I offer the employment policy of almost every company I’ve ever worked for; that is, no employee can take a second job in the field in which the employee is engaged. My father has had similar restrictions (he’s a pharmacist and has taught pharmacology classes as well as consulted on an independent basis) on his employment, but he’s gotten permission from his company because neither the college for which he’s taught, nor the nursing facility for which he’s consulted is in a position to use proprietary information.

Robin

6

Basically, yes. Exempt is just the new word for salaried. Unless you have a contract that states your hours, and DOESN’T have a clause like “…or as many hours as required by your supervisor” (most contracts DO have such a clause), they can require you to work pretty much all the time, if they want. Assuming you want to keep your job.

Yup. As Tom stated, they’ve been treating you as exempt, so you are, de facto, exempt.

Hell no! Not unless your contract, if any, states you do, which would implicitly give you permission to HAVE another job. (Or, unless Wisconsin has some really bizarre employment laws.)

No question on this one, either. They’re being slimeballs, all right. The problem is, unless you DO have a contract, and unless it gives you more protection than most (contracts being for the protection of the employer, generally), you can either live with it or leave. If you have one, read it carefully. If it doesn’t explicitly exclude the possibility of your taking another job, you’re within your rights to do so. But, without an employment contract, Tom’s right; if they decide they don’t like you, you’re history. Sucks, but there it is.

IANA lawyer, either. But, I’ve been in the same damn leaky boat most of my working life, so I’ve acquired a pretty good grasp of the technicalities over the years.

7

Another perspective is that no employer can prevent your taking another job. On the other hand, you can’t force them to keep employing you, either. These are the basics, and there are many laws which interfere with this free market.

8

What happens if you simply just go to your second job and don’t tell anyone? As long you are at your primary job when you are supposed to be, how would they know if you are teaching, watching TV or smoking crack in your spare time?

9

Does america not have unfair dismissal laws then? IANAL, but in the UK, an employer needs to give a reason for dismissing someone, and they can (and have) been taken to court if the reason is considered ‘unfair’

10

Thanks for all your input so far.

The only comment I can make here is that I don’t think the teaching job overlaps my work. The class I’m teaching is only related to my job in that they are both sciences. The teaching job is an unrelated science.

11

Yes and no.

Remember, first of all, the American propensity to sue. If an employer fires a worker that worker may turn around and sue the former employer. Even if the employer wins, this can get expensive. This makes most employers reluctant to fire someone without a good cause.

Companies over a certain size are bound not only by state laws (which is what most of this thread has discussed) but also by Federal laws concerning discrimination in hiring and firing. So, while a company with 500 employees could, theorectically under state law, fire someone just for being, say, Muslim they would immediately run afoul of Federal laws concerning freedom of religion and freedom from religious discrimination. Federal law supercedes state law.

Here in the States, even small companies are usually careful to document exactly why someone is terminated. There are all sorts of classes and training for employers and human resoucre departments in how to end someone’s job in compliance with all local, state, and Federal laws, and also how to do so in a way that minimizes the likelihood of lawsuits, or even bad feelings among former employees who are laid off due to reduced work orders or some such.

But back to the OP - really the best route is to check your employment contract if you have one, and any company policies that might be in writing about such things. Your employer might be feeling blindsided by this. I’ve known situations where employees took second jobs and wound up working so many hours their performance was compromised, and that’s always a concern.

I think their desire for you to be a “consultant” or independant contractor to this school results in part from legal and tax issues. Where I work we make extensive use of consultants from science and medical fields and, invariably, when they’re someone else’s full time employee we have them as a consultant or vice versa. Where folks are part-time both places there’s usually a lawyer or three invovled. This is not exactly your problem but your employer’s.

Remember that your employer wants your expertise and skill for X hours per week, and perhaps a few more. They want you to be alert and rested and effective on the job. They don’t want legal troubles. If you sit down with them and discuss their concerns, and keep in mind what is motivating them as your employer, you might be able to reach a compromise.

As a somewhat comparable situation - I live in one state and work in another. When I went for my job interview I was ready to address concerns about transportation, missed time due to transportation problems, and income taxes issues. The questions were all asked and settled long ago, so when issues come up we both know how to deal with it.

So think about things like - if your primary job did require you to work overtime on a night you were scheduled to teach, would you cancel class? Because that’s a question your employer has. BOTH employers, for that matter - the school will want to know what you’re doing in that situation, too.

Your situation isn’t impossible, but you will need to have a few discussions with people. Handle it correctly, you might wind up looking really good to both sides. Of course, compromise might not be possible - in which case, decide now which job is most important to you.

12

Sigene,

One question.

Why did you tell them? It’s none of their business! I have worked/will work as a part-time math instructor at night and it never even crossed my mind to tell my employer. What I do on my time is my business.

Now, if something comes up at work and I need to stay late, I have no right to say that I need to leave to go teach but that happens rarely.

13

No. This means that if it turns out he is not exempt, they may owe him overtime backpay. An employer illegally treating an employee as exempt does not make them exempt.

The Wisconsin Department of Workforce Development website has some information. Rules other than overtime are sometimes linked to exempt status, but the information here is very generic, and I would bet that there are more detailed regulations. For instance, by the legal standard of exempt, it is unclear whether you would qualify as a professional. In New York, I know that they have very very specific detailed rules as to who is considered a professional, based on specific trade and salary. You may find that if you call the WDWD offices, you can get a good deal of information for free without consulting a lawyer.

In your specific case, if you are exempt, there is nothing stopping your employer from requiring you to work past 4:30 or even 6:30 on any given day.

14

please reread andymurphus64.
KYMS, henceforth.

yes, they are being slimeballs.

have you asked them what rule or law prohibits your having a second job?

15

Thanks for the clarification. This point wasn’t clear in the OP.

Robin

16

I realize that this will largely contradict the answer you got from another poster, but as a Brit running an American company owned by a British company, I would say that it is far, far easier to fire someone in the US.

It may be tougher in some states, but in “right to work” states, you can fire someone for almost any reason except discrimination. As the lawyer we use for corporate matters said, “you can fire someone if you don’t like their tie.” The worst that then happens is that the company gets dinged for a portion of the unemployment benefit paid to the employee as an increase in company taxes. If you dismiss for cause, you don’t have to pay that.

17

Is is possible the reason they are so paranoid about you being fully employed elsewhere (even at a school) has little to do with your time, but rather that they want to retain exlusive right to patent anything you invent?

IANAL, but as far as I know, the employer owns the rights to anything an employee makes while employed there. So if you had two jobs, they would have a weakened ability to patent (and profit from) anything you invented. I imagine that at a biotech firm this is a more pressing issue than at other types of companies.

18

They are pretty wound up about patent issues but I don’t think this is the reason for being uptight. I’m teaching, not doing research, not taking or keeping notes on work I do at the school, I basically walk in…talk and direct for a couple hours, then walk out. If I was working for a company with somewhat similar goals then I could see the conflict.
By the way, it is a part time job so I don’t think I would be considered “fully employed elsewhere.”

19

I think the nail is on the head with they are fearing you accidently giving away a trade secret. Or making them look foolish. Suppose you say something bad and it is taken to be an OFFICIAL stance of the company.

If it isn’t clear your employer should have a handbook regarding this issue and if not make one now.

In Illinois in absence of a law preventing such a thing it is legal. For instance you can require people to be on call without pay because there is no law regulating it. You can fire someone for wearing blue, but not for being black. As the law prohibits race discrimination but not wearing blue.

I work in systems so my employer bars me from working in systems (which pretty much covers everything)in my hotel’s competitive set. So I couldn’t moonlight in San Diego at a Hilton, but I could work next door at a Residence Inn. Because Residence isn’t our competitor.

20

I think it’s more accurate that they want to claim as much of my time and energy as they can. Every hour I spend doing something else (including sleeping, spending time with family) is an hour I haven’t worked for the company.

They didn’t have a policy in the handbook regarding this. There was nothing there preventing me from getting a second job or giving guidelines about a second job. Only after I mentioned the second job did this paper regarding “consulting work” appear.